NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 23 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CLAUDIA SARAHI RUEDA VIDAL, No. 19-56232 Plaintiff-Appellee, D.C. No. 2:18-cv-09276-DMG-PLA v. ANDREW K. BOLTON, in his individual MEMORANDUM* capacity; DANIEL BRIGHTMAN, in his individual capacity, Defendants-Appellants, and U.S. DEPARTMENT OF HOMELAND SECURITY; et al., Defendants. Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding Argued and Submitted August 31, 2020 Pasadena, California Before: SILER,** BERZON, and LEE, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Defendants Andrew Bolton and Daniel Brightman appeal the denial of their motion to dismiss Plaintiff Claudia Rueda Vidal’s Fourth Amendment claims for unlawful seizure and arrest under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). We reverse but remand to the district court to allow Rueda Vidal to seek leave to amend her complaint. To defeat Defendants’ assertion of qualified immunity, Rueda Vidal must allege facts sufficient to support a plausible claim of (1) a violation of a constitutional right, that (2) was clearly established when the challenged conduct occurred. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rueda Vidal’s complaint does not meet the first requirement, so we need not consider the second. Rueda Vidal alleges that the officers seized and arrested her without reasonable suspicion or probable cause. Defendants offer the “obvious alternative explanation” that the officers were aware of her immigration status, giving them reasonable suspicion to seize her and probable cause for her arrest. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 567 (2007). “When faced with two possible explanations . . . plaintiffs cannot offer allegations that are ‘merely consistent with’ their favored explanation but are also consistent with the alternative explanation. Something more is needed, such as facts tending to exclude the possibility that the alternative explanation is true, in order to render plaintiffs’ allegations plausible 2 within the meaning of Iqbal and Twombly.” In re Century Aluminum Co. Sec. Litig., 729 F.3d 1104, 1108 (9th Cir. 2013) (quoting Iqbal, 556 U.S. at 678) (citations omitted). The facts alleged by Rueda Vidal may support an inference that she was targeted by the officers even though they did not know she was undocumented, but do not tend to exclude the more plausible alternative explanation that her immigration status had been checked before the officers arrived at her house to make the arrest. Rueda Vidal’s First Amended Complaint alleges that no immigration charges were filed against her until after the three weeks she was held in detention. But the judicially noticed Notice to Appear (“NTA”) shows that it was issued on the day of Rueda ...
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